Huckaby v. Henderson, No. 17996

• Court: Court of Appeals of Texas
• Writing for the Court: Before EVANS; EVANS
• Citation: 635 S.W.2d 129
• Decision Date: 19 November 1981
• Docket Number: No. 17996
• Parties: A. L. HUCKABY, Appellant, v. Marie HENDERSON, Independent Executrix Under the Will of Frank K. Jones, Deceased, Appellee. (1st Dist.)

Page 129

635 S.W.2d 129 A. L. HUCKABY, Appellant,
v.
Marie HENDERSON, Independent Executrix Under the Will of
Frank K. Jones, Deceased, Appellee. No. 17996. Court of Appeals of Texas, Houston (1st Dist.). Nov. 19, 1981.
Rehearing Denied Jan. 7, 1982.

Page 130

Gladys R. Goffney, Houston, for appellant.

Carl T. Schultz, Green, Downey, Patterson & Schultz, Houston, for appellee.

Before EVANS, C. J., and WARREN and STILLEY, JJ.

EVANS, Chief Justice.

This is a suit by the Independent Executrix under the will and of the estate of Frank K. Jones, deceased, to cancel a deed purportedly executed and delivered by the decedent to the defendant A. L. Huckaby. This deed bears a date two years prior to the decedent's death but was not recorded until after his death. On the jury's finding that the deed was a forgery, the trial court entered judgment in favor of the Independent Executrix, and the defendant brings this appeal. The judgment will be affirmed.

In his first two points of error, the defendant contends that the trial court erred in refusing to grant his motion for judgment non obstante veredicto, claiming that the jury's finding of forgery was not supported by sufficient evidence. Although the defendant argues both factual and legal insufficiency, these points, as framed, must be viewed as "no evidence" points. Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970). Therefore, this court will review only that evidence which tends to support the trial court's judgment. Malloy v. City of El Paso, 602 S.W.2d 383, 384 (Tex.Civ.App.-El Paso 1980, writ ref'd n.r.e.).

The Independent Executrix presented the testimony of a qualified handwriting expert who gave his opinion, based upon comparison of numerous handwriting samples, that the signature on the deed in question was not that of the decedent. There was also evidence from which the jury could have concluded that on the date the deed was purportedly executed and delivered, the decedent remained at home and was not visited by the defendant. It was also shown that both of the witnesses to the deed and the notary public who purportedly took the decedent's acknowledgment were all related to the defendant.

Page 131

When reviewing a no evidence point, the reviewing court must consider all testimony in a light most favorable to the party in whose favor the judgment was entered, indulging every reasonable intendment deducible from the evidence in that party's...